********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File Number: EB-09-MA-0089
Christopher M. Myers ) NAL/Acct. No: 201032600003
Lauderhill, Florida ) FRN: 0020022315
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 8, 2010 Released: July 12, 2010
By the Resident Agent, Miami Office, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Christopher M. Myers ("Mr. Myers") apparently willfully and
repeatedly violated Section 301 of the Communications Act of 1934, as
amended ("Act"), by operating an unlicensed radio transmitter on the
frequency 95.9 MHz in Lauderhill, Florida. We conclude, pursuant to
Section 503(b) of the Act, that Mr. Myers is apparently liable for a
forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. On August 14, 2008, the Enforcement Bureau's Miami Office ("Miami
Office") issued a Notice of Unlicensed Operation ("NOUO") to Mr. Myers
for operating an FM broadcast station on the frequency 91.7 MHz from
his residence in a condominium building in Lauderhill, Florida without
a license. The NOUO warned him that unlicensed operation of a radio
station violated the Act and the Commission's Rules, and that
continued operation could subject Mr. Myers to further enforcement
action. The Miami Office received the return receipt for the NOUO,
which was signed by Mr. Myers.
3. On July 21, 2009, in response to a complaint that Mr. Myers was
operating an unlicensed station at his residence in Lauderhill,
Florida, agents from the Miami Office used direction-finding
techniques to locate the source of broadcast transmissions on the
frequency 95.9 MHz to a residential condominium building in
Lauderhill, Florida - the same building from which Mr. Myers
previously operated an unlicensed radio station on 91.7 MHz. The
agents took field strength measurements and determined that the
signals being broadcast exceeded the limits allowed for operation
under Part 15 of the Commission's Rules ("Rules"), and therefore
required a license. A review of the Commission's records revealed
that Mr. Myers did not have a license for the operation of a radio
station on the frequency 95.9 MHz in Lauderhill, Florida.
4. After receiving another complaint about an unlicensed station on
frequency 95.9 MHz in Lauderhill, Florida, agents from the Miami
Office used direction-finding techniques on February 4, 2010 and again
on March 7, 2010 to locate the source of broadcast transmissions on
95.9 MHz. The agents found the source of the broadcast transmissions
in the same condominium building in Lauderhill, Florida, previously
identified in August 2008 and July 2009. The agents took field
strength measurements and determined that the signals being broadcast
on each of these dates exceeded the limits allowed for operation under
Part 15 of the Rules and therefore required a license. A review of
the Commission's records again revealed that Mr. Myers did not have a
license for the operation of a radio station on the frequency 95.9 MHz
in Lauderhill, Florida.
5. Moreover, on March 7, 2010, the agents from the Miami Office inspected
the unlicensed station, which was located in a condominium unit owned
by Mr. Myers. The agents observed a coaxial cable that connected a
roof-mounted antenna on the condominium building to an FM radio
transmitter operating on the frequency 95.9 MHz located inside Mr.
Myers's condominium unit. The agents also observed that Mr. Myers was
the only person present inside his unit at the time of the
Commission's inspection.
III. DISCUSSION
6. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation, or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) of the Act has
been interpreted to mean simply that the acts or omissions are
committed knowingly. The term "repeated" means the commission or
omission of such act more than once or for more than one day.
7. Section 301 of the Act states that no person shall use or operate any
apparatus for the transmission of energy or communications or signals
by radio within the United States except under and in accordance with
the Act and with a license granted under the provisions of the Act. In
the NOUO issued on August 14, 2008, the Commission first warned Mr.
Myers that his operation of an unlicensed radio station violated the
Act and continued operation could subject him to further enforcement
action, including substantial monetary fines. Mr. Myers acknowledged
receipt of the NOUO, but on three subsequent dates - July 21, 2009,
February 4, 2010, and March 7, 2010 - agents from the Miami Office
determined that an unlicensed radio station was operating on the
frequency 95.9 MHz from Mr. Myers's residence in Lauderhill, Florida.
Also, during an inspection on March 7, 2010, agents observed a coaxial
cable that connected a roof-mounted antenna on the condominium
building to an FM radio transmitter operating on the frequency 95.9
MHz located inside a condominium unit owned by Mr. Myers. Mr. Myers
was the only person present inside the unit at the time of inspection.
In addition, a review of the Commission's records revealed that Mr.
Myers did not have a license to operate a radio station on the
frequency 95.9 MHz in Lauderhill, Florida. Based on the facts and
circumstances described above, we find that the apparent violation was
willful. Moreover, because agents observed Mr. Myers's unlicensed
operation on three separate occasions (all of which occurred after Mr.
Myers received the NOUO), we find that the apparent violation was
repeated.
8. Based on the evidence before us, we find that Mr. Myers apparently
willfully and repeatedly violated Section 301 of the Act by operating
radio transmission equipment on the frequency 95.9 MHz in Lauderhill,
Florida on July 21, 2009, February 4, 2010, and March 7, 2010, without
a Commission authorization.
9. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for operation without an
instrument of authorization is $10,000. In assessing the monetary
forfeiture amount, we must also take into account the statutory
factors set forth in Section 503(b)(2)(E) of the Act, which include
the nature, circumstances, extent, and gravity of the violations, and
with respect to the violator, the degree of culpability, and history
of prior offenses, ability to pay, and other such matters as justice
may require. Applying the Forfeiture Policy Statement, Section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude
that Mr. Myers is apparently liable for a forfeiture in the amount of
$10,000.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314, and 1.80 of the Commission's Rules, Christopher M. Myers is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for violation of Section 301
of the Act.
11. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules, within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Christopher M. Myers
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
12. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account Number and FRN Number
referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.8 If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. Mr. Myers shall also send electronic notification
to SCR-Response@fcc.gov on the date said payment is made.
13. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.80(f)(3) and 1.16 of the Rules. The written statement must
be mailed to Federal Communications Commission, Enforcement Bureau,
South Central Region, Miami Office, PO Box 520617, Miami, FL 33152,
and must include the NAL/Acct. No. referenced in the caption. The
statement should also be emailed to SCR-Response@fcc.gov.
14. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Christopher M. Myers at his address of
record.
FEDERAL COMMUNICATIONS COMMISSION
Steven DeSena
Resident Agent
Miami Office
South Central Region
Enforcement Bureau
47 U.S.C. S: 301.
47 U.S.C. S: 503(b).
Section 15.239 of the Rules provides that non-licensed broadcasting in the
88-108 MHz band is permitted only if the field strength of the
transmission does not exceed 250 mV/m at three meters. 47 C.F.R. S:
15.239. The measurements made on July 21, 2009, indicated that the signal
was 3,784 times greater than the maximum permissible level for a
non-licensed Part 15 transmitter.
The measurements made on February 4, 2010 and March 7, 2010 indicated that
the signals were, respectively, 348 and 2,756 times greater than the
maximum permissible level for a non-licensed Part 15 transmitter.
Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term `willful', when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991), recon. denied, 7 FCC
Rcd 3454 (1992).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term `repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 U.S.C. S: 301.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 10-1274
4
Federal Communications Commission DA 10-1274